The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable legislation:

For accidents that occurred before January 1, 1992, SAC benefits are payable to workers pursuant to subsection 40(2) of the former Act, which provided as follows:

Special additional compensation

40(2) Where the board is satisfied that an injury in respect of which it has allowed compensation under subsection (1) has occasioned a loss in earning capacity that is proportionately greater than the physical loss on the basis of which the compensation is allowed, it may … increase the compensation allowed under subsection (1) in such amount as it considers fair and just, but the total compensation shall not exceed 75% of the average earnings of the worker.

The Act has since been amended, and since January 1, 1992, SAC awards are no longer granted.

WCB Policy 44.60.30.01: Special Additional Compensation (the “Policy”) deals with administration of wage loss benefits and describes when SAC will be paid, for how long, and in what amount.

It should be noted that there are two other versions of the Policy (Policy 44.60.30.02 and Policy 44.60.30). There was some discussion at the hearing as to which is the proper policy to apply. The header to the Policy reads: “Effective Date: October 1, 1994 (for existing and future claims) (see Policy 44.60.30.02 for SAC benefits effective December 31, 1984 to September 30, 1994). Given that the worker’s SAC benefits were effective in March, 1997, we are of the view that the Policy (ie. Policy 44.60.30.01) is the applicable version.

Section 2 of the Policy deals with duration of entitlement and provides as follows:

Duration of Entitlement

Where the worker continues to meet entitlement criteria, SAC will continue until the worker’s anticipated retirement date….

Section 4 of the Policy deals with adjustments to SAC and provides as follows:

Adjustment(s) SAC

a. The amount of SAC will be reviewed periodically and may be adjusted under the following circumstances:

…

iv. The amount of Canada Pension Plan, company pension, or disability insurance benefits change.

…

f. Where the worker’s entitlement to retirement pension has been negatively affected by the accident which prompted the payment of SAC, the WCB will continue SAC after the worker’s retirement date. This SAC will be based upon 2% of the monthly SAC being paid at the time of the retirement date, multiplied by the number of years that SAC was paid.

We note that the copy of the Policy which was referred to at the hearing contained a typographical error and section 4 was erroneously numbered as section 5. We acknowledge that the submissions made at the hearing which cite section 5 of the Policy were intended to reference section 4 and the typographical error does not in any way affect our decision.

Worker’s submission:

The worker attended the hearing with his spouse and daughter and a very able submission was made by the worker’s daughter on his behalf. The primary argument was based on section 4(f) of the Policy, which provides for a 2% extension of SAC benefits post retirement where it is shown that entitlement to retirement pension has been negatively affected. At the outset, it was conceded that the company retirement pension provided to the worker by the employer was not affected by the accident. The amount that the worker receives pursuant to the company pension is the same as he would have received even if he had not been injured. However, it was submitted that the worker’s eligibility for CPP benefits was negatively affected as a result of his injuries. For the first 17 years of his working life, the worker made maximum contributions to his CPP plan. But for the past 19 years, the worker has been disabled and while he was on WCB benefits, he was not permitted to contribute to his CPP pension, as one can only contribute based on employment income. As a result, the worker was not able to contribute fully to CPP and now that he is in retirement, he does not receive the maximum CPP retirement benefits. The maximum amount of CPP benefits an individual may receive is $850 per month, but the worker only receives $447 per month. It was argued that as the worker’s CPP retirement pension has been negatively affected, the Policy permits an extension of the SAC benefits beyond age 65.

A secondary argument was made at the hearing which was based on section 4(a)(iv) of the Policy. We understood the argument to be that there is authority in the Policy to review and adjust SAC benefits if the amount of CPP, company pension or disability insurance benefits change. As the worker had suffered a change in the amount of CPP to which he is entitled, the SAC benefits could be adjusted to provide for further payment after the worker’s retirement date.

Analysis:

In order for the worker’s appeal to be successful, the panel must interpret the Policy, and specifically, the panel must interpret the term “retirement pension” and decide whether the term includes a CPP pension. Although the panel is sympathetic to the worker’s circumstances, we are unable to accept the proposed interpretation.

In the panel’s opinion, the term “retirement pension” is meant to refer to a private pension provided through a worker’s workplace or union and does not include the universal government CPP retirement pension. If the interpretation proposed by the worker were to be accepted, then virtually every worker who received WCB wage loss benefits would be entitled to the additional SAC after age 65. This could not have been the intention of the Policy.

We think that the more reasonable interpretation is that the term “retirement pension” does not include a CPP retirement pension. This interpretation is consistent with administrative guidelines which were added to version 44.60.30 of the Policy. The administrative guidelines state:

Retirement Pensions

A “registered retirement pension plan” as defined in The Pension Benefits Act of Manitoba or applicable federal pension legislation includes a retirement pension provided through the worker’s employer or union. It does not include a CPP retirement pension or a RRSP pension (paid for by the worker for him or herself).

While the administrative guidelines are not binding on the panel in this case, we do find the guidelines to be persuasive and of assistance in guiding our interpretation.

It was also argued on behalf of the worker that section 4(a)(iv) was applicable to permit an adjustment to SAC benefits. In the panel’s opinion, the intent of section 4(a)(iv) is to permit adjustments to the benefits while the SAC award is still in effect. It does not operate to allow extension of SAC benefits beyond age 65.